Under subsection 7(2) of the CTPA, the MRCA applies to a person's claim for aggravation of an accepted SRCA condition if two criteria are met:
Both criteria must be met before the MRCA can apply to an aggravation of a SRCA condition. The MRCA does not apply to an aggravation of a SRCA condition if the aggravation occurred after 1 July 2004 and the aggravation only relates to defence service rendered before 1 July 2004.
It is important to note that liability for clinical onset of the original condition continues to exist under the SRCA even if the MRCA applies to an aggravation of that condition.
The aggravation must occur on or after 1 July 2004. In the case of aggravation of diseases, subsection 4AA [3] of the SRCA specifies that delegates should not use any of the following as the date the aggravation occurred (see subsection 7(4) [3] of the SRCA):
Instead, delegates should establish, on the balance of probabilities, the date aggravation occurred by reference to the appropriate medical evidence (see 3.4.3 [4] of Chapter 3: Liability). If this date is before 1 July 2004 the MRCA does not apply to that aggravation.
Example:
On 7 August 2006 a member submits a claim for an aggravation of osteoarthrosis (OA) of the left knee. The member enlisted in the Army in 1999 and continues to serve. Liability for OA was accepted under the SRCA on 23 February 2002. The DMO advises the delegate that the first signs of aggravation of OA was on 21 April 2004, where an x-ray shows a marked deterioration in the member's OA beyond the normal progression of the disease. On the balance of probabilities the delegate determines this to be the date the aggravation occurred, regardless of the date the member first sought medical treatment for the aggravation of her OA, or the aggravation resulted in her incapacity or impairment. Therefore, the MRCA does not apply to this aggravation as it occurred before 1 July 2004.
The aggravation must relate to defence service rendered on or after 1 July 2004 (see 3.2 [6] of Chapter 3: Liability). However, it is not necessary for the aggravation to relate solely to defence service rendered on or after the 1 July 2004. The MRCA will also apply to an aggravation that relates to defence service rendered before the 1 July 2004, but only if the aggravation also relates to defence service rendered on or after 1 July 2004. In other words, the MRCA will apply if the aggravation relates to service before and on or after 1 July 2004. Defence service taken into account can span 1 July 2004 or be rendered during separate periods (including periods of service separated by a period of non-service).
Example 1:
On 19 May 2006 the member submits a claim for aggravation of chondromalacia patellae (CMP) of the left knee. The member enlisted in the Army in 1998 and is still serving. Liability for CMP was accepted under the SRCA on 18 August 2003. The DMO confirms from the medical evidence on file a further breakdown in the underlying pathology of the member's CMP following clinical onset in 2003. The delegate takes a look at the Repatriation Medical Authority (RMA) Instrument No.34 of 2001 and notes that the only factors relating to the clinical worsening of CMP involve a direct trauma to or abnormal tracking of the patellae, or meniscal damage or permanent ligamentous instability. The delegate reviews all evidence including service medical records looking for evidence that service rendered after 1 July 2004 has aggravated the member's condition. The only evidence is of a trauma on 12 April 2004 when the member fell on her left knee. The delegate decides MRCA does not apply to the member's aggravation because the aggravation only relates to defence service rendered before the 1 July 2004. He phones the member to discuss the matter with her. The member agrees that the claim should be assessed under the SRCA.
Example 2:
On 9 August 2006 a member submits a claim for 'hearing loss' (no diagnosis on claim form). The member enlisted in the Navy on 4 May 1999 and is still serving. The member's claim form contends high noise levels on HMA warships as the cause of his hearing loss. A diagnosis of bilateral sensorineural hearing loss (SNHL) is obtained and the delegate refers the member for an audiogram to confirm a permanent hearing threshold shift of 25 decibels (dB) to confirm the application of RMA Instrument No.30 of 2001. The member has not previously claimed SNHL.
Periodic audiograms contained in the members service and medical documents show a gradual deterioration from about early 2000 to date. As this was the time medical evidence indicates that the member was first suffering symptoms which indicate that SNHL was present, the delegate, after conferring with the DMO, establishes this as the date of clinical onset. An audiogram conducted in March 2004 shows significant deterioration in hearing. Based on this medical evidence, it cannot be said that clinical onset of the member's SNHL occurred after 1 July 2004, or that clinical onset of the member's SNHL relates to service rendered on or after 1 July 2004. Therefore, the MRCA does not apply to any claim for clinical onset of SNHL. Instead, compensation coverage is available under the SRCA (assuming the member has no eligible VEA service) for hearing loss up to March 2004.
An audiogram in September 2004 shows a further deterioration from March 2004. Based on this medical evidence it could be said that an aggravation has occurred after 1 July 2004. Compensation coverage may be available under the MRCA for any hearing loss suffered after March 2004, because this is considered an aggravation which relates to service rendered (before and) on or after 1 July 2004.
Under section 5 [8] of the MRCA, a recurrence must be distinguished from an aggravation and is treated as a claim for clinical onset. Therefore, the MRCA applies to a claim where the condition:
Although liability under the SRCA can still be accepted for the first occurrence of the condition, a claim under that Act would be nugatory in terms of the compensation or benefits that the claimant would receive, as that occurrence of the condition has fully resolved. The full effects of the current condition are related to the recurrence attributable to MRCA service and that Act applies to any such claim. This action does not preclude liability from being accepted under SRCA for the first occurrence if the claimant so wishes, but reflects the fact that compensation and benefits that might be claimed are covered under the MRCA and not the SRCA.
Example:
On 14 September 2006 a member submits a claim for fracture of the right ankle. The member sustained the ankle injury in a parachuting accident in 2002 and continues to serve. After operative and other treatment she was passed medically Fit for Full Duty on 23 July 2004. However, the member suffers a re-fracture of the same ankle on 28 October 2005 after a new posting in January 2005 when she slipped while cleaning fresh water tanks. While the original condition occurred before 1 July 2004 it had fully resolved prior to 1 July 2004. The effects suffered now are due to a new injury attributable to service after 1 July 2004. Therefore, the MRCA applies to the claim.
Often, delegates will receive a claim for a condition where:
In such a scenario both the SRCA and the MRCA apply to the claim. Unless instructed to do otherwise by the claimant or the claimant's legal personal representative, delegates should determine liability under the M — RCA first, before liability under the SRCA is determined. After a determination is made under the MRCA, delegates can then make a liability determination under the SRCA.
Although liability under the SRCA may result in a component of PI compensation, a claim under the SRCA will probably not provide the claimant access to other compensation and benefits which they require to meet their immediate needs. Therefore, a determination under the MRCA is made, and a needs assessment conducted, before determining whether there is any liability under the SRCA to ensure that the member is provided with early access to the appropriate incapacity compensation, rehabilitation and treatment benefits of the MRCA.
Where a claim is to be assessed under both the SRCA and the MRCA it will be necessary to obtain the person's consent to use the information on the claim form for both Acts. It is recommended that for all claims encompassing both the MRCA and the SRCA, the member is asked to sign the following release:
“I (Name) of (Address), consent to the information collected pursuant to this form being used for the purposes of investigating my entitlement to benefits under both the SRCA and the MRCA
Signature Date”
Example:
A member submits a claim for thoracic spondylosis on 8 November 2005. The member sustained a trauma to the spine while playing approved sport on 12 April 1998 which resulted in the clinical onset of the condition in 2002. No claim for compensation was lodges at that time. After operative treatment and rehabilitation the member seems to have been left with a residual impairment but it did not prevent him serving in a full capacity. However, some time during October 2005 the condition rendered him unable to continue serving. The member claims the deterioration of the condition has been accelerated due to the forced pack marches he has participated in over the course of his service.
Clinical onset of the condition was before 1 July 2004 and related to defence service rendered before the 1 July 2004. Therefore, the SRCA applies to the claim for clinical onset of the condition. The subsequent acceleration in deterioration of the condition is an aggravation of the condition. The MRCA applies to this aggravation as it arose out of service rendered before and on and after 1 July 2004. The delegate contacts the member and explains the situation to him. The member understands that the impairment he suffers from his condition is covered under two separate pieces of legislation and agrees to sign the release so that his claim for liability can be assessed under both the SRCA and the MRCA.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18885%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/18868%23comment-form
[3] https://clik.dva.gov.au/legislation-library
[4] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/34-investigating-claim/344-establishing-clinical-onset-andor-worsening
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/18853%23comment-form
[6] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/32-heads-liability
[7] https://clik.dva.gov.au/user/login?destination=comment/reply/18860%23comment-form
[8] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-mrca
[9] https://clik.dva.gov.au/user/login?destination=comment/reply/18874%23comment-form